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Emerging issues in confrontation litigation : a supplement to Crawford v. Washington: confrontation one year later

Emerging issues in confrontation litigation : a supplement to Crawford v. Washington: confrontation one year later - Page 6

2
decided. This paper supplements that monograph and
is designed as a reference for North Carolina judges
and litigants. Section I begins with a discussion of
Davis v. Washington, 4 the United States Supreme
Court’s first decision interpreting Crawford. Section
II discusses a number of key issues that remain open
even after Davis. Finally, Section III summarizes
significant Crawford cases decided since publication
of Confrontation One Year Later, and highlights how
Davis might impact the confrontation clause analysis
with regard to particular categories of evidence.
I. Davis v. Washington
A. Facts
Davis was the Court’s first opportunity to apply its
new Crawford test. The decision involved two cases:
Davis v. Washington and Hammon v. Indiana. The
fact that both cases involved domestic violence is no
coincidence. Because victims often fail to testify in
domestic violence cases, this category of cases– along
with child abuse cases where the same problem
occurs– was dramatically impacted by the Crawford
decision. 5
Davis involved a confrontation clause objection
to statements made by a victim during a 911 call.
During the call, the following conversation occurred:
911 Operator: Hello.
Complainant: Hello.
911 Operator: What’s going on?
Complainant: He’s here jumpin’ on me
again.
911 Operator: Okay. Listen to me
carefully. Are you in a house or an
apartment?
Complainant: I’m in a house.
911 Operator: Are there any weapons?
Complainant: No. He’s usin’ his fists.
911 Operator: Okay. Has he been
drinking?
Complainant: No.
911 Operator: Okay, sweetie. I’ve got
help started. Stay on the line with me,
okay?
Complainant: I’m on the line.
4. 126 S. Ct. 2266 ( 2006).
5. See id. at 2279- 80 ( acknowledging that domestic
violence cases are “ notoriously susceptible to intimidation
or coercion of the witness to ensure that she does not testify
at trial”).
911 Operator: Listen to me carefully.
Do you know his last name?
Complainant: It’s Davis.
911 Operator: Davis? Okay, what’s his
first name?
Complainant: Adrian
911 Operator: What is it?
Complainant: Adrian.
911 Operator: Adrian?
Complainant: Yeah.
911 Operator: Okay. What’s his middle
initial?
Complainant: Martell. He’s runnin’ now.” 6
The conversation continued and the operator
learned that Davis had run out after hitting the victim,
and was leaving in a vehicle. When the victim started
talking, the operator cut her off, saying, “ Stop talking
and answer my questions.” The operator gathered
more information about Davis, including his birthday
and why he had come to the house. The victim
described the assault and the operator told her that the
police would first try to find Davis and then come to
her house. The police arrived within four minutes and
saw that the victim was shaken, had fresh injuries,
and was frantically gathering her belongings and
children to leave the residence.
The State charged Davis with felony violation of
a domestic no- contact order. At trial, the victim did
not testify. The State’s only witnesses were the police
officers who responded to the scene. Over Davis’s
confrontation clause objection, the trial court
admitted a recording of the 911 call. Davis was
convicted, and he appealed. On appeal, the
confrontation clause issue was limited to that portion
of the 911 call in which the victim identified Davis as
the perpetrator. 7
Hammon involved a police response to a
reported disturbance at the home of Hershel and Amy
Hammon. The police found Amy alone on the front
porch, appearing somewhat frightened; however,
Amy told the officers that nothing was the matter.
After receiving Amy’s permission to enter the home,
one officer saw a flaming gas heating unit and pieces
of glass in front of the heater. Hershel, who was in
the kitchen, told the police that he and Amy had
argued but that everything was fine and the argument
never became physical. An officer again asked Amy
what had happened. Hershel made several attempts to
intervene in this conversation, became angry when an
officer stopped him from doing so, and had to be
“ forcibly” prevented from interfering. 8 Amy told the
6. Id. at 2271.
7. Id. at 2277.
8. Id. at 2278.
March 2007

2
decided. This paper supplements that monograph and
is designed as a reference for North Carolina judges
and litigants. Section I begins with a discussion of
Davis v. Washington, 4 the United States Supreme
Court’s first decision interpreting Crawford. Section
II discusses a number of key issues that remain open
even after Davis. Finally, Section III summarizes
significant Crawford cases decided since publication
of Confrontation One Year Later, and highlights how
Davis might impact the confrontation clause analysis
with regard to particular categories of evidence.
I. Davis v. Washington
A. Facts
Davis was the Court’s first opportunity to apply its
new Crawford test. The decision involved two cases:
Davis v. Washington and Hammon v. Indiana. The
fact that both cases involved domestic violence is no
coincidence. Because victims often fail to testify in
domestic violence cases, this category of cases– along
with child abuse cases where the same problem
occurs– was dramatically impacted by the Crawford
decision. 5
Davis involved a confrontation clause objection
to statements made by a victim during a 911 call.
During the call, the following conversation occurred:
911 Operator: Hello.
Complainant: Hello.
911 Operator: What’s going on?
Complainant: He’s here jumpin’ on me
again.
911 Operator: Okay. Listen to me
carefully. Are you in a house or an
apartment?
Complainant: I’m in a house.
911 Operator: Are there any weapons?
Complainant: No. He’s usin’ his fists.
911 Operator: Okay. Has he been
drinking?
Complainant: No.
911 Operator: Okay, sweetie. I’ve got
help started. Stay on the line with me,
okay?
Complainant: I’m on the line.
4. 126 S. Ct. 2266 ( 2006).
5. See id. at 2279- 80 ( acknowledging that domestic
violence cases are “ notoriously susceptible to intimidation
or coercion of the witness to ensure that she does not testify
at trial”).
911 Operator: Listen to me carefully.
Do you know his last name?
Complainant: It’s Davis.
911 Operator: Davis? Okay, what’s his
first name?
Complainant: Adrian
911 Operator: What is it?
Complainant: Adrian.
911 Operator: Adrian?
Complainant: Yeah.
911 Operator: Okay. What’s his middle
initial?
Complainant: Martell. He’s runnin’ now.” 6
The conversation continued and the operator
learned that Davis had run out after hitting the victim,
and was leaving in a vehicle. When the victim started
talking, the operator cut her off, saying, “ Stop talking
and answer my questions.” The operator gathered
more information about Davis, including his birthday
and why he had come to the house. The victim
described the assault and the operator told her that the
police would first try to find Davis and then come to
her house. The police arrived within four minutes and
saw that the victim was shaken, had fresh injuries,
and was frantically gathering her belongings and
children to leave the residence.
The State charged Davis with felony violation of
a domestic no- contact order. At trial, the victim did
not testify. The State’s only witnesses were the police
officers who responded to the scene. Over Davis’s
confrontation clause objection, the trial court
admitted a recording of the 911 call. Davis was
convicted, and he appealed. On appeal, the
confrontation clause issue was limited to that portion
of the 911 call in which the victim identified Davis as
the perpetrator. 7
Hammon involved a police response to a
reported disturbance at the home of Hershel and Amy
Hammon. The police found Amy alone on the front
porch, appearing somewhat frightened; however,
Amy told the officers that nothing was the matter.
After receiving Amy’s permission to enter the home,
one officer saw a flaming gas heating unit and pieces
of glass in front of the heater. Hershel, who was in
the kitchen, told the police that he and Amy had
argued but that everything was fine and the argument
never became physical. An officer again asked Amy
what had happened. Hershel made several attempts to
intervene in this conversation, became angry when an
officer stopped him from doing so, and had to be
“ forcibly” prevented from interfering. 8 Amy told the
6. Id. at 2271.
7. Id. at 2277.
8. Id. at 2278.
March 2007